DAR File No. 38510

Administrative Services, Purchasing and General Services

Rule R33-12

Rules of Procedure for Procurement Policy Board and Procurement Appeals Panel

Notice of Proposed Rule

(Repeal and Reenact)

DAR File No.: 38510
Filed: 05/13/2014 12:57:19 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The reason for the repeal and reenactment is because the Division of Purchasing and General Services is updating this rule to comply with the provisions of the Procurement Code, Title 63G, Chapter 6a, and to match recent legislation (S.B. 179 of the 2014 General Legislative Session, including S.B. 190 from the 2013 General Legislative Session, and S.B. 153 from the 2012 General Legislative Session).

Summary of the rule or change:

This rule establishes the terms and conditions, contracts, change orders, and costs for procurements. This rule is being updated to comply with the provisions of the Utah Procurement Code, Title 63G, Chapter 6a, and to match recent legislation. The substantive changes in this rule are that the Procurement Policy Board has been renumbered to Rule R33-2 and Rule R33-18. (DAR NOTE: The proposed repeal and reenact of Rule R33-2 is under DAR No. 38501 and the proposed new Rule R33-18 is under DAR No. 38516 in this issue, June 1, 2014, of the Bulletin.)

State statutory or constitutional authorization for this rule:

• Title 63G, Chapter 6a

Anticipated cost or savings to:

the state budget:

The state's budget will not be affected, because this rule simply establishes the terms and conditions, contracts, change orders, and costs for procurements. If there is any impact, it is created by the statute. This rule merely implements the statute.

local governments:

Local governments' budgets will not be affected, because this rule simply establishes the terms and conditions, contracts, change orders, and costs for procurements. If there is any impact, it is created by the statute. This rule merely implements the statute.

small businesses:

Small businesses' budgets will not be affected, because this rule simply establishes the terms and conditions, contracts, change orders, and costs for procurements. If there is any impact, it is created by the statute. This rule merely implements the statute.

persons other than small businesses, businesses, or local governmental entities:

No other person's budget will be affected, because this rule simply establishes the terms and conditions, contracts, change orders, and costs for procurements. If there is any impact, it is created by the statute. This rule merely implements the statute.

Compliance costs for affected persons:

There are no compliance costs for any person, because this rule simply establishes the terms and conditions, contracts, change orders, and costs for procurements. If there is any impact, it is created by the statute. This rule merely implements the statute.

Comments by the department head on the fiscal impact the rule may have on businesses:

There is no fiscal impact on businesses. If there is any impact, it is created by the statute. This rule merely implements the statute.

Kimberly Hood, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Administrative Services
Purchasing and General Services
Room 3150 STATE OFFICE BLDG
450 N STATE ST
SALT LAKE CITY, UT 84114-1201

Direct questions regarding this rule to:

• Alan Bachman at the above address, by phone at 801-538-3105, by FAX at 801-538-3313, or by Internet E-mail at [email protected]
• Paul Mash at the above address, by phone at 801-538-3138, by FAX at 801-538-3882, or by Internet E-mail at [email protected]
• Chiarina Bautista at the above address, by phone at 801-538-3240, by FAX at 801-538-3313, or by Internet E-mail at [email protected]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

07/01/2014

This rule may become effective on:

07/08/2014

Authorized by:

Kent Beers, Director

R33. Administrative Services, Division of Purchasing and General Services.

[ R33-12. Rules of Procedure for Procurement Policy Board and Procurement Appeals Panel.

R33-12-1. Purpose.

The purpose of this Rule R33-12 is to establish procedures for the meetings of the Procurement Policy Board as well as the procedures for an appeal before the Procurement Appeals Panel.

 

R33-12-2. Authority.

This Rule R33-12 is authorized under Subsection 63G-6-201(3)(a)(i) which directs that the Procurement Policy Board "adopt rules of procedure for conducting its business." The Procurement Policy Board is also authorized to make rules under Section 63G-6-807 et. seq.

 

R33-12-3. Definitions.

All definitions in the Utah Procurement Code, Title 63G, Chapter 6, shall apply to this Rule R33-12. In addition the following definitions shall apply to this Rule R33-12:

(1) "Attendance" means a person attending a Board meeting, either in person or through electronic means as authorized by this Rule.

(2) "Board" means the Procurement Policy Board established under Section 63G-6-201.

(3) "Chair" means the person elected as Chair of the Board pursuant to Subsection 63G-6-201 (3)(a)(ii).

(4) "Chief Procurement Officer" means the Chief Procurement Officer as defined in the Utah Procurement Code.

(5) "Director" means the Director of the Division of Purchasing and General Services or a duly authorized designee.

(6) "Division" means the Division of Purchasing and General Services.

(7) "Electronic meeting" is as defined in Section 52-4-103.

(8) "Open and Public Meetings Laws" means those laws provided by Title 52, Chapter 4, Utah Code.

(9) "Parties of Record" means the person(s) that have appealed the protest decision to the Procurement Policy Board, the entity or entities that made the subject procurement, the entity or entities who are the intended beneficiaries of the procurement, as well as those that have approved to intervene in accordance with this Rule R33-12.

(10) "Presiding Officer" means the Chair. The Chair may choose, either because of unavailability or any other reason, an alternate Presiding Officer.

(11) "Protest Officer" means:

(a) as it relates to a purchasing agency, the head of the purchasing agency or a designee of the head of the purchasing agency;

(b) as it relates to a local public procurement unit, the purchasing officer or the governing body of the local public procurement unit, or a designee of either;

(c) as it relates to a public procurement unit other than a public procurement unit described in Subsection (11)(a) or (b) of this Rule R33-12-3, the chief procurement officer or the chief procurement officer's designee.

 

R33-12-4. Composition of Board.

(1) The Board consists of fifteen voting members, as well as a nonvoting secretary appointed by the Chief Procurement Officer, who must be an employee of the Division.

(2) The secretary shall not be considered as part of the quorum requirement for Board meetings or determinations.

 

R33-12-5. Calling Meetings.

The Chair or any three voting members may call meetings of the Board. The Executive Director of the Department of Administrative Services or Director may also call a meeting.

 

R33-12-6. Chair, Presiding Officer and Basic Responsibilities.

(1) The Chair shall be the Presiding Officer at all Board meetings.

(2) The Chair may choose, either because of unavailability or any other reason, an alternate Presiding Officer, who is a member of the Board.

(3) The Presiding Officer shall be able to make motions and have a vote on each matter before the Board. The Presiding Officer may second motions.

(4) Unless otherwise directed by vote of the Board, the Presiding Officer shall be responsible for the operation of the meeting, shall have control over the items on the agenda, the order of the agenda, time limits that are needed, and other matters that relate to the orderly running of the meeting. Notwithstanding this, the Director may also place items on the Board agenda.

(5) The Chair shall be elected by the Board and serve for one year. The Chair may be elected to succeeding terms.

 

R33-12-7. Secretary to the Board.

(1) The Chief Procurement Officer shall appoint an employee of the Division to serve as Secretary to the Board. The Secretary shall be present at each meeting of the Board, shall provide the posting of notice, minutes, any required recording, and all secretarial related requirements related to the Open and Public Meetings laws. The Secretary shall coordinate with others as needed for compliance with the Open and Public Meetings laws.

(2) The Secretary shall maintain a record of Board meetings which shall include minutes, agendas and submitted documents, including those submitted electronically, that shall be available at reasonable times to the public.

 

R33-12-8. Meetings.

Meetings are generally held in the conference room of the Division of Purchasing and General Services, 3rd floor, State Office Building, Capitol Hill, in Salt Lake City, Utah. The date, time and location may also be identified or modified by the Chair and Director at any time when it is in the interest of the Board and the public.

 

R33-12-9. Compliance with Open and Public Meeting Laws.

All meetings of the Board shall be conducted in accordance with the Open and Public Meetings laws. All meetings are open to the public unless closed in whole or in part pursuant to the requirements of the Open and Public Meetings laws.

 

R33-12-10. Notice and Agenda.

(1) Notice shall be given of all meetings in accordance with the Open and Public Meetings laws.

(2) The Director or Presiding Officer may determine items to be placed on the agenda. A vote of the Board may also place an item on an agenda for a future meeting. Board members may also contact the Chair or Director about any request for agenda items.

(3) The order of business shall be in the order placed on the agenda, unless the Presiding Officer or vote of the Board alters the order of business and there is no prejudice to interested persons.

(4) Members of the Board, the Division, governmental agencies and the public may submit a request to the Secretary to the Board that an item be placed on the agenda subject to review and approval by the Presiding Officer or Director.

(5) Each agenda shall include an agenda item regarding whether there are any matters to be placed on a future agenda.

 

R33-12-11. Attendance, Quorum and Voting.

(1) Eight members of the Board are required for a quorum to transact business.

(2) For any determination of the Board, it must be approved by a majority vote of those voting members present and it must receive an affirmative vote from at least five members.

(3) Voting shall be expressed publicly when called for by the Presiding Officer. An affirmative vote shall be recorded for all Board members present that neither vote negatively nor specifically abstain. The number of affirmative, negative and abstaining votes shall be announced by the Presiding Officer, and the vote of each member shall be recorded by the Secretary.

(4) Members must be in attendance, including by electronic means in accordance with this Rule, in order to vote.

 

R33-12-12. Motions, Second to a Motion, Discussion, Continuances and Resolutions.

(1) Any voting member may make or second a motion.

(2) Items may be continued to any subsequent meeting by vote of the Board.

(3) A second to a motion is required prior to discussion by Board members.

(4) After a motion is seconded, the Presiding Officer shall ask for discussion of the matter. The Presiding Officer shall call upon those that request to discuss the matter. The Presiding Officer retains the authority to place reasonable restrictions on the discussion to assure that the discussion is orderly and relevant to the motion. After the discussion, or if no Board member desires to discuss the matter, the Board shall proceed to vote on the matter without the need for a formal call to question.

(5) The Board may enact resolutions.

 

R33-12-13. Committees and Appeals Panel.

The Board may appoint committees to investigate or report on any matter which is of concern to the Board. The appointment of an Appeals Panel is described in Rule R33-12-19.

 

R33-12-14. Order at Meetings.

(1) The Presiding Officer shall preserve order and decorum at all meetings of the Board and shall determine questions of order, which may be subject to a vote of the Board.

(2) A person or persons creating a disturbance or otherwise obstructing the orderly process of a Board meeting may be ordered to leave the meeting.

 

R33-12-15. Rules of Order.

All matters not covered by this Rule R33-12 shall be determined by Robert's Rules of Order, latest published edition; an abbreviated edition of Robert's Rules of Order as determined by the Presiding Officer; or abbreviated procedures as determined by the Presiding Officer.

 

R33-12-16. Electronic Meetings.

(1) Purpose. Section 52-4-207 requires any public body that convenes or conducts an electronic meeting to adopt a rule governing the use of electronic meetings. This Rule R33-12-16 establishes procedures for conducting Board meetings by electronic means.

(2) Procedure. The following provisions govern any meeting at which one or more Board members appear electronically pursuant to Section 52-4-207:

(a) if one or more members of the Board desire to participate electronically, such member(s) shall contact the Director or Secretary. The Director shall assess the practicality of facility requirements needed to conduct the meeting electronically in a manner that allows for the attendance, participation and monitoring as required by this Rule. If it is practical, the Presiding Officer or Director shall determine whether to allow for such electronic participation, and the public notice of the meeting shall so indicate. In addition, the notice shall specify the anchor location where the members of the Board not participating electronically will be present and where interested persons and the public may attend, monitor, and participate in the open portions of the meeting.

(b) Notice of the meeting and the agenda shall be posted at the anchor location and be provided in accordance with the Open and Public Meetings laws. The anchor location is the physical location where the electronic meeting originates or where the participants are connected. The anchor location shall be identified in the public notice for the meeting. Unless otherwise designated in the notice, the anchor location shall be a room in the Utah State Capitol Hill Complex where the Board would normally meet if the Board was not holding an electronic meeting.

(c) Notice of the possibility of an electronic meeting shall be given to the Board members at least 24 hours before the meeting. In addition, the notice shall describe how a Board member may participate in the meeting electronically.

(d) When notice is given of the possibility of a Board member participating electronically, any Board member may do so and any voting Board member, whether at the anchor location or participating electronically, shall be counted as present for purposes of a quorum and may fully participate and vote. At the commencement of the meeting, or at such time as any Board member initially appears electronically, the Presiding Officer shall identify for the record all those who are participating electronically. Votes by members of the Board who are not at the anchor location of the meeting shall be confirmed by the Presiding Officer.

(e) The anchor location will have space and facilities so that interested persons and the public may attend, monitor and participate in the open portions of the meeting, as appropriate.

 

R33-12-17. Suspension of the Rules.

By a vote of the Board, and to the extent allowed by law, any requirement of this Rule R33-12-1 through R33-12-17 may be suspended when necessary to better serve the public in the conduct of a Board meeting.

 

R33-12-18. Intervention in a Protest.

(1) Application. This Rule contains provisions applicable to intervention in a protest, including who may intervene and the time and manner of intervention.

(2) Period of Time to File. After a timely protest is filed in accordance with the Utah Procurement Code, the Protest Officer shall notify awardees of the subject procurement and may notify others of the protest. A Motion to Intervene must be filed with the Protest Officer no later than ten days from the date such notice is sent by the Protest Officer. Only those Motions to Intervene made within the time prescribed in this Rule R33-12-18 will be considered timely. The entity or entities who conducted the procurement and those who are the intended beneficiaries of the procurement are automatically considered a Party of Record and need not file any Motion to Intervene.

(3) Contents of a Motion to Intervene. A copy of the Motion to Intervene shall also be mailed or emailed to the person protesting the procurement.

(4) Any Motion to Intervene must state, to the extent known, the position taken by the person seeking intervention and the basis in fact and law for that position. A motion to intervene must also state the person's interest in sufficient factual detail to demonstrate that:

(a) the person seeking to intervene has a right to participate which is expressly conferred by statute or by Commission rule, order, or other action;

(b) the person seeking to intervene has or represents an interest which may be directly affected by the outcome of the proceeding, including any interest as a:

(i) consumer;

(ii) customer;

(iii) competitor;

(iv) security holder of a party; or

(v) the person's participation is in the public interest.

(5) Granting of Status. If no written objection to the timely Motion to Intervene is filed with the Protest Officer within seven calendar days after the Motion to Intervene is received by the protesting person, the person seeking intervention becomes a party at the end of this seven day period. If an objection is timely filed, the person seeking intervention becomes a party only when the motion is expressly granted by the Protest Officer based on a determination that a reason for intervention exists as stated in this Rule. Notwithstanding any provision of this Rule R33-12-18, an awardee of the procurement that is the subject of a protest will not be denied their Motion to Intervene, regardless of its content, unless it is not timely filed with the Protest Officer.

(6) Late Motions. If a motion to intervene is not timely filed, the motion shall be denied by the Protest Officer.

 

R33-12-19. Procurement Appeals Panel.

(1) In General and Grounds for Appeal. This Rule R33-12-19 shall apply for any appeal of a protest decision to the Procurement Policy Board where such appeal is made in accordance with the Utah Procurement Code. The grounds for an appeal are limited to those specified in the protest letter as required by the Utah Procurement Code.

(2) Creation of Procurement Appeals Panel. Within seven days after the day on which the Chair receives a timely written notice of appeal in accordance with the Utah Procurement Code, the Chair or a designee of the Chair who is a member of the Board shall appoint a procurement appeals panel to hear and decide the appeal, consisting of at least three individuals, each of whom shall be:

(a) a member of the Procurement Policy Board; or

(b) a designee of a member appointed as indicated below, if the designee is approved by the Chair.

(3) Designee of Chair to make Appointment in Special Circumstances. When the Chair is employed by the public entity responsible for the solicitation, contract award or other action complained of, the Chair shall have a designee who is a member of the Board and not so employed make the appointments.

(4) Panel to have a Chair. The appointments made under this Rule shall include the designation of a Chair for the Panel.

(5) Conflicts of Interest. A person may not be appointed to the panel if the person is employed by the public entity responsible for the solicitation, contract award or other action complained of.

(6) Odd number of members. The Panel shall consist of an odd number of members.

(7) Informal Proceeding, Rules of Evidence Not Applicable. The Panel shall conduct an informal proceeding on the appeal within 60 days after the day on which the procurement appeals panel is appointed unless all parties stipulate to a later date or the panel continues the proceeding beyond the 60 day period if the panel determines the continuance is in the interests of justice. The Rules of Evidence do not apply to an appeal proceeding.

(8) Notice of Proceeding. At least seven days before the proceeding, the Panel shall mail, email, or hand deliver a written notice of the proceeding to the parties to the appeal.

(9) Written Decision. Within seven days after the day on which the proceeding ends, the Chair of the Panel shall issue a written decision on the appeal to the parties to the appeal and to the protest officer. The written decision must be supported by at least two panel members.

(10) Record for Decision. The Panel shall consider the appeal based solely on the following without taking any additional evidence:

(a) the protest decision;

(b) the record considered by the person who issued the protest decision; and

(c) if a protest hearing was held, the record of the protest hearing.

(11) Standard for Review. The Panel shall uphold the decision of the protest officer, unless the decision is arbitrary and capricious or clearly erroneous.

(12) Parameters if Decision not Upheld on Appeal. If the Panel determines that the decision of the Protest Officer is arbitrary and capricious or clearly erroneous, the panel:

(a) shall remand the matter to the Protest Officer to cure the problem or render a new decision;

(b) may recommend action that the Protest Officer should take; and

(c) may not order that a contract be awarded to a certain person, a contract or solicitation be cancelled, or any other action to be taken other than the action described in (12)(a) above.

(13) Expedited Proceedings. A proceeding may be expedited as described in Rule R33-12-19(27).

(14) Electronic Participation. Electronic Participation by Panel Members and Participants. Any panel member or participant may participate electronically by:

(a) notifying the Chair of the Panel at least 24 hours in advance of the proceeding;

(b) the Chair of the Panel will allow such electronic participation provided that the electronic means for such participation, by phone, computer or otherwise, is available at the location; and

(c) the electronic means allows other members of the Panel and other participants to hear the person or persons participating electronically.

(15) Security Deposit.

(a) A person who files an appeal shall, at the time the appeal is filed, pay a security deposit or post a bond with the protest officer in an amount that is the greater of:

(i) for the appeal of a debarment or suspension, $1000;

(ii) for any type of procurement, $1000;

(iii) for an invitation for bids, 5% of the lowest bid amount, if the bid opening has occurred, or 5% of the estimated contract cost, which shall be the amount of the budget allocated by the public entity for the subject procurement, if the bid opening has not yet occurred;

(iv) for a request for proposals, 5% of the lowest cost proposed in a response to the request for proposals, if the opening of proposals has occurred, or 5% of the estimated contract cost, which shall be the amount of the budget allocated by the public entity for the subject procurement, if the opening of proposals has not yet occurred;

(v) for a type of procurement other than an invitation for bids or request for proposals, 5% of the amount of the budget allocated by the public entity for the subject procurement.

(b) For purposes of this Security Deposit, when the amount of the budget allocated by the public entity for the subject procurement is to be used, the following shall apply:

(i) the security deposit or bond posting does not need to be filed along with the appeal, but must be filed within 7 days of the appellant being notified of the budget allocated by the public entity for the subject procurement.

(c) The security deposit or bond posting may be waived or reduced under the following circumstances:

(i) where the Appellant in the notice of appeal has indicated that the Appellant is impecunious or otherwise faces an economic hardship in the ability to pay a security deposit or bond posting , and the Chair of the Panel determines that such condition exists;

(ii) where the Appellant in the notice of appeal has indicated other grounds acceptable to the Division of Purchasing and General Services to be appropriate; or

(iii) where the subject procurement involves a small purchase or any procurement below $10,000.

(d) If a waiver is denied under this Rule, the Appellant must post the appropriate security deposit or bond within seven days of date of receipt of the notice of denial or the appeal will be dismissed.

(e) The Chair of the Board shall dismiss an appeal filed under the matter if the Appellant fails to timely pay the security deposit or post the bond required by the Utah Procurement Code and this Rule.

(f) The Chair of the Board shall retain the security deposit or bond until the protest and any appeal of the protest decision is final.

(g) The Chair of the Board shall deposit the security deposit into an interest-bearing account.

(h) The Chair of the Board shall, after any appeal of the protest decision becomes final, return the security deposit and the interest it accrues to the person who paid the security deposit, unless the security deposit is forfeited to the General Fund under this Rule.

(i) The Chair of the Board shall retain the bond until the protest and any appeal of the protest decision becomes final and thereafter either return the bond to the person who posted the bond or have the bond forfeited to the General Fund under this Rule.

(j) A security deposit that is paid, or a bond that is posted, under this Rule shall forfeit to the General Fund if:

(i) the person who paid the security deposit or posted the bond failed to ultimately prevail on appeal; and

(ii) the panel finds that the protest or appeal is frivolous or that its primary purpose is to harass or cause a delay.

(16) Discontinuance of Appeal. After notice of an appeal to the Board is filed in accordance with the Utah Procurement Code, no party may discontinue the appeal without prejudice, except as authorized by the Panel.

(17) Dismissal for Lack of Compliance. A Panel may dismiss an appeal that is assigned to the Panel if the appeal is not filed in accordance with the requirements of the Utah Procurement Code and this Rule enacted pursuant to the Utah Procurement Code.

(18) Appearance and Representation, Electronic Participation. A person may represent him or herself before the Panel. Any person or party may be represented by an attorney at law. Parties shall enter their appearances at the beginning of the proceeding or at such time as may be designated by the Panel by giving their names and addresses and stating their positions or interests in the proceeding.

(19) Intervention on Appeal.

(a) Only those persons who have intervened in the protest that is being appealed may intervene in the appeal process unless the grounds for intervention did not exist until the time of appeal. A Motion to Intervene must be received by the Protest Officer or Chair of the Board within seven days of being notified of the Appeal by the Protest Officer. A copy of the Motion to Intervene shall also be mailed or emailed to the Appellant.

(b) The entity or entities who conducted the procurement and those who are the intended beneficiaries of the procurement are automatically considered a Party of Record and need not file any Motion to Intervene.

(c) Contents of a Motion to Intervene. Any Motion to Intervene must state, to the extent known, the position taken by the person seeking intervention and the basis in fact and law for that position. A Motion to Intervene must also state the person's interest in sufficient factual detail to demonstrate that:

(i) the person seeking to intervene has a right to participate which is expressly conferred by statute or by Commission rule, order, or other action;

(ii) the person seeking to intervene has or represents an interest which may be directly affected by the outcome of the proceeding, including any interest as a:

(A) consumer;

(B) customer;

(C) competitor;

(D) security holder of a party; or

(E) the person's participation is in the public interest.

(d) Granting of Status. If no written objection to the timely Motion to Intervene is filed with the Chair of the Panel within seven calendar days after the Motion to Intervene is received by the Party of Record desiring to object, the person seeking intervention becomes a party at the end of this seven day period. If an objection is timely filed, the person seeking intervention becomes a party only when the motion is expressly granted by the Appeals Panel based on a determination that a reason for intervention exists as stated in this Rule.

(e) Late Motions. If a motion to intervene is not timely filed, the motion shall be denied by the Appeals Panel.

(20) Form of Pleadings and Documents. All documents and pleadings submitted to the Chair and the Panel shall indicate the name, mailing address, any email address and phone number of the submitting person as well as indicate by a certificate of service that it was provided to all other persons known to be a party in the proceeding.

(21) Signature. Pleadings shall be signed by the party or the participant, or by the party's attorney or other authorized representative, and shall reflect the address of the signer to whom any further notices should be sent. The signature shall be deemed to be a certification by the signer that he/she has read the pleading and that to the best of his/her knowledge and belief there is good ground to support it.

(22) Response. A Party of Record against whom a pleading is directed may file an answer or other response thereto. Answers or other responses shall contain a clear and concise statement of the matter relied upon as a basis for the answer or response, together with an appropriate prayer for relief.

(23) Motions. Motions may be submitted for the Panel's determination by either written or oral argument, and may be supported by affidavits. However, no new evidence is allowed in the appeal as prescribed by the Utah Procurement Code.

(24) Original and Copies. One original of all pleadings and documents submitted to the Panel, with attachments, shall be filed with the Panel. Filings in electronic form by email are encouraged. The Panel may thereafter direct that a copy of all pleadings and other documents be made available by the party filing same to any person whom the Panel determines may be affected by the proceedings, and who desires copies thereof.

(25) Service on Other Parties. All Parties of Record shall serve one copy of all pleadings and other documents on each of the other Parties of Record either by personal service, hand delivery, or by mailing/emailing a copy to the party's physical address or email address as shown in the filings of the Panel or the subject Purchasing Agency. In the event service is made by mail to a physical address, the party serving same shall attach to the original of the pleading a certificate that a true copy thereof was, on the appropriate date, mailed to the designated address by first class United States mail, properly addressed with postage prepaid. When any party has appeared by an attorney or other authorized representative, service upon such attorney or representative constitutes service upon the party.

(26) Answers or Responses. Answers or responses shall be filed with the Panel and served upon Parties of Record within ten days after service of the original pleading unless for good cause the Panel extends the time within which such answer or response may be made. All motions must be filed, and served upon all Parties of Record, not later than three days prior to any date set for the proceeding before the Panel.

(27) Pre-Proceeding Conference and Expedited Proceedings.

(a) The Panel may, upon written notice to all parties, hold a pre-proceeding conference for the purpose of formulating and simplifying the issues or any other matter that assists with the proceeding. A person participating in a pre-proceeding conference on behalf of each party shall have authority to negotiate and agree to settlement of the dispute.

(b) Any party may request a pre-proceeding conference in an effort to expedite the proceeding. Upon such a request to expedite the proceeding, the Panel shall consider any expedited process that considers the needs to expedite the proceeding while assuring that the due process rights of all parties are protected.

(28) The Proceeding. The Panel shall set the time and place for the proceeding at the earliest practical date and written notice by mail or email shall be provided to each Party of Record and, at the discretion of the Panel, to any other interested persons. The Chair of the Panel shall establish the order of the proceeding, including the sequence and time limit for presentations. The proceeding shall be recorded or have a court reporter.

(29) Determination. After the Panel has reached a final decision by a majority vote, the Chair of the Panel shall prepare a written determination. A copy of the determination shall be served upon the Parties of Record as herein provided.]

R33-12. Terms and Conditions, Contracts, Change Orders and Costs.

R33-12-101. Required Contract Clauses.

Public entities shall comply with Section 63G-6a-1202 considering clauses for contracts. Executive branch procurement units shall also comply with the requirements of Section 63G-6a-402(6). All definitions in the Utah Procurement Code shall apply to this Rule unless otherwise specified in this Rule. This administrative rule provides additional requirements and procedures and must be used in conjunction with the Procurement Code.

 

R33-12-201. Establishment of Terms and Conditions.

(1) Executive branch procurement units without independent procurement authority shall be required to use the Standard Terms and Conditions adopted by the division for each particular procurement, unless exceptions or additions are granted by the Chief Procurement Officer after consultation with the Attorney General's Office. Public entities, other than executive branch procurement units, may enact similar requirements. Terms and conditions may be established for:

(a) a category of procurement items;

(b) a specific procurement item;

(c) general use in all procurements;

(d) the special needs of a conducting procurement unit; or

(e) the requirements of federal funding.

(2) In addition to the required standard terms and conditions, executive branch procurement units without independent procurement authority may submit their own additional special terms and conditions subject to the following:

(a) the chief procurement officer may reject terms and conditions submitted by a conducting procurement unit if:

(i) the terms and conditions are unduly restrictive;

(ii) will unreasonably increase the cost of the procurement item; or

(iii) places the state at increased risk.

(b) the chief procurement officer may require the conducting procurement unit's Assistant Attorney General to approve any additional special terms and conditions.

 

R33-12-301. Multiple Award Contracts -- Indefinite Quantity Contracts.

(1) A multiple award is an award of an indefinite quantity contract for one or more similar procurement items to more than one bidder or offeror, and the procurement unit is obligated to order all of its actual, normal requirements for the specified procurement items from those contractors. A multiple award may be in the procurement unit's best interest when an award to two or more bidders or offerors for similar procurement items is needed for adequate delivery, service, or availability, or for product compatibility. In making a multiple award, care shall be exercised to protect and promote the principles of competitive solicitation. All eligible users of the contract shall be named in the solicitation, and it shall be mandatory that the requirements of the users that can be met under the contract be obtained in accordance with the contract, provided, that:

(a) the procurement unit shall reserve the right to take bids separately if a particular quantity requirement arises which exceeds an amount specified in the contract; or

(b) the procurement unit shall reserve the right to take bids separately if the chief procurement officer or head of a procurement unit with independent procurement authority approves a finding that the procurement item available under the contract will not meet a nonrecurring special need of the procurement unit.

(2) As permitted by Section 63G-6a-1204.5, the division or a procurement unit with independent procurement authority may enter into multiple award contracts. In addition to the content requirements contained in Section 63G-6a-603 and Section 63G-6a-703, when it is anticipated that a procurement will result in multiple contract awards, the solicitation shall include:

(a) statement that award may be made to more than one bidder or offeror; and,

(b) the maximum number of awards anticipated; or

(c) the methodology used to determine the number of contract awards.

(3) Use of Multiple Award Contracts.

(a) Whenever practicable, a solicitation for a multiple award contract shall include requirements that procurement units shall:

(i) obtain a minimum of two quotes for the procurement item(s) sought from the multiple award contractors;

(ii) use a rotational system of selecting the multiple awarded contractor for the procurement item(s) needed;

(iii) based on geographical area of assignment or area of expertise; or

(iv) use other methods to ensure each awarded contractor a fair opportunity to be considered for each order of a procurement item(s) from the procurement unit.

(4) No method, such as allocation or designation of a preferred awarded contractor, which would not result in fair consideration being given to all multiple award contractors shall be used.

(5) Multiple award contracts may be awarded by geographical regions, by line items, or any manner that serves the best interest of the procurement units, as determined in writing by the chief procurement officer or head of a procurement unit with independent procurement authority.

 

R33-12-302. Primary and Secondary Contracts.

(1) Designations of multiple award contracts as primary and secondary may be made provided a statement to that effect is contained in the solicitation documents.

(2) When the chief procurement officer or head of a procurement unit with independent procurement authority determines that the need for procurement items will exceed the capacity of any single primary contractor, secondary contracts may be awarded to additional contractors.

(3) Purchases under primary and secondary contracts shall be made, initially to the primary contractor offering the lowest contract price until the primary contractor's capacity has been reached or the items are not available from the primary contractor, then to secondary contractors in progressive order from lowest price or availability to the next lowest price or availability, and so on.

R33-12-303. Intent to Use.

If a multiple award is anticipated prior to issuing a solicitation, the method of award shall be stated in the solicitation.

 

R33-12-401. Contracts and Change Orders -- Contract Types.

A procurement unit may use contract types to the extent authorized under Section 63G-6a-1205.

R33-12-402. Prepayments.

Prepayments are subject to the restrictions contained in Section 63G-6a-1208.

R33-12-403. Leases of Personal Property.

Leases of personal property are subject to the following:

(1) Leases shall be conducted in accordance with Division of Finance rules and Section 63G-6a-1209.

(2) A lease may be entered into provided the procurement unit complies with Section 63G-6a-1209 and:

(a) it is in the best interest of the procurement unit;

(b) all conditions for renewal and costs of termination are set forth in the lease; and

(c) the lease is not used to avoid a competitive procurement.

(3) Lease contracts shall be conducted with as much competition as practicable.

(4) Executive Branch Procurement Unit Leases with Purchase Option. A purchase option in a lease may be exercised if the lease containing the purchase option was awarded under an authorized procurement process. Before exercising this option, the procurement unit shall:

(a) investigate alternative means of procuring comparable procurement items; and

(b) compare estimated costs and benefits associated with the alternative means and the exercise of the option, for example, the benefit of buying new state of the art data processing equipment compared to the estimated, initial savings associated with exercise of a purchase option.

R33-12-404. Multi-Year Contracts.

(1) Procurement units may issue multi-year contracts in accordance with Section 63G-6a-1204.

R33-12-405. Installment Payments.

(1) Procurement units may make installment payments in accordance with Section 63G-6a-1208.

R33-12-501. Change Orders.

(1) In addition to the requirements contained in Section 63G-6a-1207, for executive branch procurement units without independent procurement authority, the certifications required under 63G-6a-1207(1) and 63G-6a-1207(2) must be submitted in writing by the procurement unit to the chief procurement officer prior to the commencement of any work to be performed under a contract change order unless:

(a) The procurement unit has authority, as may be granted under Section 63G-6a-304(1) and Rule R33-3-101, to authorize contract change orders up to the amount delegated; or

(b) The change order is requisite to:

(i) avert an emergency; or

(ii) is required as an emergency.

(c) For purposes of this subsection "emergency" is described in Rule R33-8-401(3) and is subject to Section 63G-6a-803.

(2) Any contract change order authorized by a procurement unit under Rule R33-12-501(1)(c)shall, as soon as practicable, be submitted to the chief procurement officer and included in the division's contract file.

R33-12-502. Technology Modifications.

(1) Any contract subject to a modification for technological upgrades shall have had a provision to that effect included in the solicitation. Any modification to a contract for upgraded technology must be substantially within the scope of the original procurement or contract, and if both parties agree to the modification, then the contract may be modified.

(2) Any contract subject to a modification for technological upgrades shall have had a provision to that effect included in the solicitation. No contract modification for new technology requested by an acquiring agency shall be exercised without the approval required under Section 63F-1-205, the new technology modification has been subject to the review as described in Rule R33-6-113 and the contracting parties agree to the modification.

(3) No contract may be extended beyond the term of the contract included in the solicitation except as provided in the Utah Procurement Code.

R33-12-601. Requirements for Cost or Pricing Data.

(1) For contracts that expressly allow price adjustments, cost or pricing data shall be required in support of a proposal leading to the adjustment of any contract pricing.

(2) Cost or pricing data exceptions:

(a) need not be submitted when the terms of the contract state established market indices, catalog prices or other benchmarks are used as the basis for contract price adjustments or when prices are set by law or rule;

(b) if a contractor submits a price adjustment higher than established market indices, catalog prices or other benchmarks established in the contract, the chief procurement officer or head of a procurement unit with independent procurement authority may request additional cost or pricing data; or

(c) the chief procurement officer or head of a procurement unit with independent procurement authority may waive the requirement for cost or pricing data provided a written determination is made supporting the reasons for the waiver. A copy of the determination shall be kept in the contract file.

R33-12-602. Defective Cost or Pricing Data.

(1) If defective cost or pricing data was used to adjust a contract price, the vendor and the procurement unit may enter into discussions to negotiate a settlement.

(2) If a settlement cannot be negotiated, either party may seek relief through the courts.

R33-12-603. Price Analysis.

(1) Price analysis may be used to determine if a price is reasonable and competitive, such as when:

(a) there are a limited number of bidders or offerors;

(b) awarding a sole source contract; or

(c) identifying price outliers in bids and offers.

(2) Price analysis involves a comparison of prices for the same or similar procurement items, including quality, warranties, service agreements, delivery, contractual provisions, terms and conditions, and so on.

(3) Examples of a price analysis include:

(a) prices submitted by other prospective bidders or offerors;

(b) price quotations;

(c) previous contract prices;

(d) comparisons to the existing contracts of other public entities; and,

(e) prices published in catalogs or price lists.

R33-12-604. Cost Analysis.

(1) Cost analysis includes the verification of cost data. Cost analysis may be used to evaluate:

(a) specific elements of costs;

(b) total cost of ownership and life-cycle cost;

(c) supplemental cost schedules;

(d) market basket cost of similar items;

(e) the necessity for certain costs;

(f) the reasonableness of allowances for contingencies;

(g) the basis used for allocation of indirect costs; and,

(h) the reasonableness of the total cost or price.

R33-12-605. Audit.

A procurement unit may, at reasonable times and places, audit or cause to be audited by an independent third party firm, by another procurement unit, or by an agent of the procurement unit, the books, records, and performance of a contractor, prospective contractor, subcontractor, or prospective subcontractor.

R33-12-606. Retention of Books and Records.

Contractors shall maintain all records related to the contract. These records shall be maintained by the contractor for at least six years after the final payment, unless a longer period is required by law.

All accounting for contracts and contract price adjustments, including allowable incurred costs, shall be conducted in accordance with generally accepted accounting principles for government.

R33-12-607. Applicable Credits.

Applicable credits are receipts or price reductions which offset or reduce expenditures allocable to contracts as direct or indirect costs. Examples include purchase discounts, rebates, allowance, recoveries or indemnification for losses, sale of scrap and surplus equipment and materials, adjustments for overpayments or erroneous charges, and income from employee recreational or incidental services and food sales.

R33-12-608. Use of Federal Cost Principles.

(1) In dealing with contractors operating according to federal cost principles, the chief procurement officer or head of a procurement unit with independent procurement authority, may use the federal cost principles, including the determination of allowable, allocable, and reasonable costs, as guidance in

(2) In contracts not awarded under a program which is funded by federal assistance funds, the chief procurement officer or head of a procurement unit with independent procurement authority may explicitly incorporate federal cost principles into a solicitation and thus into any contract awarded pursuant to that solicitation. The chief procurement officer or head of a procurement unit with independent procurement authority and the contractor by mutual agreement may incorporate federal cost principles into a contract during negotiation or after award.

(3) In contracts awarded under a program which is financed in whole or in part by federal assistance funds, all requirements set forth in the assistance document including specified federal cost principles, must be satisfied. To the extent that the cost principles specified in the grant document conflict with the cost principles issued pursuant to Section 63G-6a-1206, the cost principles specified in the grant shall control.

R33-12-609. Authority to Deviate from Cost Principles.

If a procurement unit desires to deviate from the cost principles set forth in these rules, a written determination shall be made by the chief procurement officer or head of a procurement unit with independent authority specifying the reasons for the deviation and the written determination shall be made part of the contract file.

R33-12-701. Inspections.

Circumstances under which the procurement unit may perform inspections include inspections of the contractor's manufacturing/production facility or place of business, or any location where the work is performed:

(1) whether the definition of "responsible", as defined in Section 63G-6a-103(40) and in the solicitation documents, has been met or are capable of being met; and

(2) if the contract is being performed in accordance with its terms.

R33-12-702. Access to Contractor's Manufacturing/Production Facilities.

(1) The procurement unit may enter a contractor's or subcontractor's manufacturing/production facility or place of business to:

(a) inspect procurement items for acceptance by the procurement unit pursuant to the terms of a contract;

(b) audit cost or pricing data or audit the books and records of any contractor or subcontractor pursuant to Rule R33-12-605; and

(c) investigate in connection with an action to debar or suspend a person from consideration for award of contracts.

R33-12-703. Inspection of Supplies and Services.

(1) Contracts may provide that the procurement unit or chief procurement officer or head of a procurement unit with independent procurement authority may inspect procurement items at the contractor's or subcontractor's facility and perform tests to determine whether the procurement items conform to solicitation and contract requirements.

R33-12-704. Conduct of Inspections.

(1) Inspections or tests shall be performed so as not to unduly delay the work of the contractor or subcontractor. No inspector may change any provision of the specifications or the contract without written authorization of the chief procurement officer or head of a procurement unit with independent procurement authority. The presence or absence of an inspector or an inspection, shall not relieve the contractor or subcontractor from any requirements of the contract.

(2) When an inspection is made, the contractor or subcontractor shall provide without charge all reasonable facilities and assistance for the safety and convenience of the person performing the inspection or testing.

KEY: [procurement, procedures, appeals, Procurement Policy Board]terms and conditions, contracts, change orders, costs

Date of Enactment or Last Substantive Amendment: [October 8, 2012]2014

Authorizing, and Implemented or Interpreted Law: [63G-6-807; 63G-6-201(3)(a)(i)]63G-6a